The Rise of First Amendment Audits and Its Impact on YOU!

“IF THEY CANNOT PROVOKE A CONFRONTATION, THEY WILL TYPICALLY LEAVE. TO AN AUDITOR, POLITE + FRIENDLY = BORING.”

A First Amendment Audit. Most of us have never heard of such a thing, let alone experienced it. But the chance of facing one grows daily. They are aggravating and unsettling; and if not handled well, can impact your safety, your reputation, and your bottom line.

A little background. Since George Holliday filmed the Rodney King confrontation on March 3, 1991, people have recorded the interactions of police, public officials, and even private citizens. These days you don’t even need a camera or camcorder. Smartphones allow anyone to record and broadcast in real time with a device that fits in their pocket. Today, people record routine events hoping to capture something worth broadcasting. Some have taken to using this technology as a tool for social justice. However, this has become a twoedged sword, recording the unjust and wreaking havoc on the innocent. An unfortunate offshoot has been the proliferation of conflict created for conflict’s sake that is then recorded and posted on social media under the guise of crusading for rights or justice, including the recently popularized genre of First Amendment auditors.

This movement is a group of loosely affiliated activists who place themselves in confrontational situations with police and government officials while recording the interaction with a stated goal of “auditing” the encounters for First Amendment rights violations. The focus has expanded recently to target anyone working in the public arena, including utility workers.

What is a First Amendment Audit? According to the auditors, an audit is an inspection of how well government officials and others working in the public arena stay within the bounds of the Constitution. In reality, it is little more than an effort to record and profit from a confrontation. Typically, social media activists with recording devices enter a public building, a work site, or an outdoor activity and use aggressive and alarming tactics to provoke a reaction. This encounter is then uploaded to a media platform.

Can they legally do this? Yes, they can. By and large, the law is on their side. If they are in a public area and stay within legal boundaries, they can record and broadcast images of almost anything and anyone. In fact, once they have legally created a recording, they own it and have complete control over the content, no matter the subject or image.

First Amendment auditors have had a series of successful litigations stretching back to May 8, 2012, when a landmark Seventh Circuit, U.S. Court of Appeals decision set a new standard for audio recording of people carrying out “their duties in public places and engaging in public communications audible to persons who witness the events.” Since then, auditors have used increasingly militant tactics to elicit and record frustrated responses from typically unprepared victims.

What are the ramifications of an audit? Overreaction can be costly. An inappropriate response can be a public relations disaster for your company, and once the recording hits the internet, you may receive threats against you or your company. The auditor won’t be held accountable for third-party threats.

Becoming physical and grabbing the auditor or recording equipment will likely result in assault charges followed by the inevitable lawsuit for damages, along with the reputational damage and threats.

What to expect during an audit?

The encounter will be planned to take you and your employees by surprise. The auditor will often show up in attire meant to intimidate and alarm. Some go as far as carrying weapons. The auditor will start filming and say nothing (stonewall approach) or begin aggressively questioning any employee they encounter.

If they use the stonewall approach, they will not respond to questions or speak when spoken to. They will typically only respond if you take offensive action, with simple statements such as “do not touch me”, “do not touch my camera”, or similar directives.

If they use the aggressive questioning approach, they will try to verbally overpower flustered employees with rapid-fire questions and demands, often asking for documents or information they may or may not have the legal right to obtain.

In both cases, they will not respond to questions, provide their name, state the nature of their visit, or explain their intent. Their goal is to elicit a frustrated, fearful, or angry reaction. They expect the police to be called and will follow the same tactics with them, hoping to record a belligerent response.

How do you defend against a First Amendment Audit? The best approach is to be proactive with training and preparation. Make sure every employee who could be confronted knows how to respond with professionalism and decorum. Determine what auditors can and cannot do. For example, they cannot interfere with emergency response or stand in the way of work being carried out. They do not have carte blanche over your facility or work area.

Use the following suggestions as a first step in preparing for a First Amendment Audit.

1.Make sure employees understand and accept that, with some exceptions, legally there is no expectation of privacy in a public place. This means a person can legally record activity and people in public places, as well as anything that can be seen from a public place.

2.First Amendment auditors are hoping for an altercation. Do not engage unless they engage you or you have a reason to communicate with them. If you do engage, be courteous and professional. If they cannot provoke a confrontation, they will typically leave. To an auditor, polite + professional = boring.

3.Once you realize you are dealing with an aggressive auditor, quietly contact law enforcement. Remember the auditor is hoping to hear threats, or that you are “calling the police;” don’t give them the satisfaction.

4.Auditors do not have the right to interfere with your work, enter restricted areas, impede emergency response, or create a hazard. They do not have the right to enter marked work areas or create a dangerous situation for you or the public.

5.Engage a security specialist who understands your industry and the motives of the auditors to help you prepare for a First Amendment Audit. A security specialist can identify where an encounter is likely to take place and develop effective practices and protocols.

Finally, a First Amendment Audit is a money-making venture and source of fame for the auditors. Their revenue and reputation are tied directly to the number of clicks the uploaded video receives. The more outrageous the response, the more clicks, which translates to more income and notoriety. No confrontation means fewer clicks and little or no income or recognition. The less you interact with an auditor, the less profitable the recorded encounter will be and the less interest they will have in continuing the audit.

Jim Willis, CMAS, is president of InDev Tactical, a security training, and consulting f irm. Jim has more than 40 years of experience in working with electric power and telecommunication utilities. He is a credentialed homeland security specialist and anti-terrorism expert with expertise in counterterrorism, planning, training, and security operations. Jim can be reached at jim.willis@indevtactical.net

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